United States Court of Appeals for the Federal Circuit ______________________

ATLANTA GAS LIGHT COMPANY, Appellant

v.

BENNETT REGULATOR GUARDS, INC., Appellee ______________________

2021-1759 ______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2015- 00826. ______________________

Decided: May 13, 2022 ______________________

JOSHUA NATHANIEL MITCHELL, King & Spalding LLP, Washington, DC, argued for appellant. Also represented by JEFFREY S. BUCHOLTZ; RUSSELL BLYTHE, HOLMES J. HAWKINS, III, Atlanta, GA.

WAYNE D. PORTER, JR., Law Offices of Wayne D. Porter, Jr., Brecksville, OH, argued for appellee. ______________________

Before NEWMAN, LOURIE, and STOLL, Circuit Judges. Opinion for the court filed by Circuit Judge STOLL. Case: 21-1759 Document: 29 Page: 2 Filed: 05/13/2022

2 ATLANTA GAS LIGHT CO. v. BENNETT REGUL. GUARDS, INC.

Dissenting opinion filed by Circuit Judge NEWMAN. STOLL, Circuit Judge. This case from the United States Patent Trial and Ap- peal Board returns to us for a third time. In its final writ- ten decision, the Board, in the underlying inter partes review proceeding, rejected patent owner Bennett Regula- tor Guards, Inc.’s argument that petitioner Atlanta Gas Light Company was time barred from petitioning for inter partes review under 35 U.S.C. § 315(b). It then determined that the challenged claims were unpatentable over the prior art. Bennett appealed. In that first appeal, we disa- greed with the Board’s time-bar determination, holding that Atlanta Gas should have been barred; vacated the Board’s unpatentability determination; and remanded with directions to dismiss the IPR and to further consider a sanctions order that the Board had not yet finalized. Before the Board acted on our mandate, however, the Supreme Court held that time-bar determinations were unreviewable in Thryv, Inc v. Click-To-Call Technologies, LP, 140 S. Ct. 1367 (2020), and vacated our decision over- ruling the Board’s time-bar determination. On remand from the Supreme Court, we affirmed the Board’s un- patentability determination on the merits (while saying nothing about the time bar) and again remanded for the Board to reconsider and finalize its order regarding sanc- tions. On remand from this court, the Board terminated the proceeding due in part to its reconsideration of its decision on the time bar. Atlanta Gas appeals. We conclude that we lack jurisdiction to review the Board’s decision to vacate its institution decision, a decision it made based in part on its evaluation of the time bar and changed Patent and Trademark Office policy. Accordingly, we dismiss Atlanta Gas’s appeal for lack of jurisdiction. Case: 21-1759 Document: 29 Page: 3 Filed: 05/13/2022

ATLANTA GAS LIGHT CO. v. BENNETT REGUL. GUARDS, INC. 3

BACKGROUND Bennett is the assignee of the patent-at-issue—U.S. Patent No. 5,810,029. The ’029 patent is directed to an anti-icing device for a gas pressure regulator. Bennett sued Atlanta Gas, a distributor of natural gas in Georgia, for infringement of the ’029 patent. J.A. 628–30. Atlanta Gas was served with the complaint on July 18, 2012. Id.; see also J.A. 2645. Ultimately, that litigation was dis- missed without prejudice for lack of personal jurisdiction. J.A. 295. On July 18, 2013, exactly one year after Bennett served Atlanta Gas with the complaint, Atlanta Gas filed an IPR petition requesting review of the ’029 patent. J.A. 2645. That IPR was instituted and litigated through oral hear- ing, awaiting only the final written decision from the